The Alito Shuffle

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

But if, on the other hand, you are going to follow the Alito confirmation hearing because you are interested in the political and legal shadows it is likely to throw then you are truly in for a treat. The Alito hearing will be florid and passionate and testy and often insightful. It will be so only because Judge Alito, to his great - but temporary - misfortune, has become the vessel through which Senate Judiciary Committee Democrats - and perhaps some moderate Republicans - will be able to express their frustration with, and even outrage over, the Bush administration's startling terror law positions.

I don't buy into recent talk of a filibuster by Senate Democrats and moderate Republicans. I can understand the threat. But right now Judge Alito has the votes to be confirmed - just do the math - and the only person who can stop his ascension is the judge himself. If he is defensive and argumentative and if he talks and acts like a partisan ideologue, then I can see the mood shifting a bit in favor of a stalemate. But I think Alito is too smart to fall into that trap, and I think that the lesson of Robert Bork's catastrophic performance in 1987 is still too fresh in the minds of Alito's handlers for them to allow it to happen again. My brave prediction? Judge Alito gets fewer votes than Roberts' 78 but still gets in at around 60.

Why the closer call? Because Judge Alito starts the week in markedly weaker shape than did John G. Roberts, Jr., who sailed through the confirmation process last September. Alito is far less polished and neutral-seeming than Roberts. And whereas Roberts came off ultimately as a humble student of the law, Alito's writings, first as a government lawyer and then as a judge, suggest a far greater level of ideology and advocacy and partisan grit. For Democrats, then, there simply is more "there" there to Judge Alito - more questionable rulings and theories that warrant a far more thorough examination than Roberts received.

Judge Alito also is the victim of bad timing and circumstance. He comes to the little white table in the hearing room at the Hart Office Building on Capitol Hill as the High Court pick of a weakened president whose terror law policies have come to alarm many rational voices in the nation's legal community. A lot of very smart people, liberals and conservatives both, have raised a lot of very important questions about how this administration has been interpreting federal law, and the Constitution, in its efforts to expand presidential and law enforcement power. And, like the batter who has to face the angry pitcher who's just been hammered for a home run, Judge Alito happens to be the poor guy who has to sit there, under oath, and face the chin music before a Congress angry at its recent treatment by the White House. You might say that the judge is a stunt nominee - the guy who will get blasted for his benefactors' dubious policy choices.

So Judge Alito will get drilled for his views about the White House's domestic spying program, which no court in the nation has ever endorsed. Does he agree that the president's constitutional war powers trump the search-and-seizure protections of the Fourth Amendment? If so, why? And what would the limitations be on this presidential power? Judge Alito also will be harried to explain why he believes the executive branch has the power to "interpret" certain presidential actions in a way that expands presidential power. Does it concern him at all that the executive branch would attempt in this way to preempt a core judicial duty, the interpreting the legality of governmental actions? If not, why not?

Judge Alito also should be nudged into talking about the Geneva Convention's prohibitions against torture and why for too long the Administration simply blew them off. Should not the United States recognize not just the letter but also the spirit of the international treaties to which it is a signator? He should be asked about the president's power to unilaterally declare U.S. citizens as "enemy combatants" and deprive them of core due process rights. He should be asked about the military tribunal procedures set up to handle the Guantanamo Bay detainees. In short, Judge Alito should be asked all of the vital terror law questions that Committee members would love to have asked, under oath, to the president, or Vice President Dick Cheney, or any of the other architects of the current presidential power-grab.

Judge Alito will likely be asked these questions with an intensity and ferocity that was missing during the Roberts' hearing. And in the end, although he will fail to offer many specifics by claiming he cannot discuss issues that might come before him as a justice, he ultimately will have to tell the Committee whether he believes in a stronger judiciary or a stronger presidency. It's an area of inquiry that has become far more urgent now than it was during the Roberts' hearing in September, before we learned about warrantless domestic spying, secret torture prisons in Eastern Europe, the White House's sudden change-of-heart about Jose Padilla, and many other uncomfortable things about the way our government has chosen to wage the war on terror.

Alito will be asked these terror law questions in addition to the litany of other questions that have become so familiar at these ritualistic events. Abortion rights? Any reasonable person who read Alito's Reagan-era memos can hardly deny that he came across as someone who believed profoundly that Roe v. Wade was wrongly decided. So if he believed it then why should he not be presumed to believe it now? The "different hats" argument - that in 1985 he was a zealously advocating a position on behalf of a client and that he will look at things differently as a Justice - only goes so far. No one who endorsed or who was neutral about Roe would have or could have written as passionately and eloquently about its demise as Judge Alito did as a young attorney. Why shouldn't we think he'll apply the same legal reasoning now as a Justice to undercut the precedent?

Civil rights? Judge Alito will have to explain his apparent disdain for the core voting principle of "one-person, one-vote," the doctrine which (when endorsed by the Supreme Court in the early 1960s) broke the back of the rural cliques that kept disproportionate political power for themselves at the expense of minorities and the poor. The one-person, one-vote doctrine is so generally accepted today in the law that it would be startling for any Supreme Court nominee not to embrace it enthusiastically. We'll see. We'll also see how he defends past decisions that seem to suggest an unwillingness to defer to legislative decisions even as he has been gleeful about deferring to executive branch choices. Is he going to be a Hamiltonian justice, full of pride in and support for a strong executive? Hopefully he will say so.

In the end, whether it is abortion rights or voting rights or terror law cases, Judge Alito will have to bear the burden of convincing some Committee members that his overwhelming conservative voting record as a federal appeals court judge isn't the result of rigid, fixed ideology but rather a reasoned and consistent approach to the law. I know, I know - one person's "fixed ideology" is another person's "consistent approach to the law." It'll be up to Judge Alito to find the difference there and then sell it to those skeptics on the Judiciary Committee who see in Judge Alito precisely the sort of High Court game-changer they have feared for decades.

Remember, Judge Alito will replace a justice, Sandra Day O'Connor, who often was the pragmatic and consensus-building fifth and deciding vote in some of the most contentious cases of her time. And yet Judge Alito, his lengthy record reflects, is precisely who the president said he was when he nominated him: a staunchly conservative jurist who will start off his tenure on the Court to the right of where his predecessor is as she leaves it. Judge Alito also is precisely the sort of judge the president said that he would nominate to the Supreme Court during the 2004 election, and precisely the type of Justice that candidate John Kerry warned against during his campaign. Bush won the election. He gets to pick. The Republicans maintained control of the Senate. The majority rules. It's as simple as that.

This nomination has never been about competence. The American Bar Association declared last week that Judge Alito is "well-qualified" to become the next Associate Justice of the High Court but we didn't really need the lawyers at the ABA to tell us what we already know. Judge Alito is super bright, has been on the 3rd U.S. Circuit Court of Appeals bench for over a decade, and is in the mainstream of judicial doctrine so long as you define mainstream broadly. Questions about his ethics are false starts. If he were as unethical as some of those critics now claim, he long ago would have been outed by his fellow judges or the lawyers who practice before him. Of course he is "well-qualified." He's no Harriet Miers.

Instead, this nomination, like many nominations, is about raw political power. A Democratic President would have selected another candidate. And if the Senate were in Democratic hands President Bush would no doubt have selected a jurist whose record was much more moderate and temperate than is Judge Alito's. But in the end all the Committee Democrats will be able to do is ask their questions, try to get a few candid answers here and there from the nominee, exact their pounds of political flesh from the president, and hope above all to highlight for the nation just how extraordinary are the legal positions this administration is taking, even as it argues for decreased judicial review of those positions.

So Judge Alito soon will become Justice Alito, not because he necessarily represents the legal views of a majority of Americans, or because his vision of the nation's legal landscape is particularly profound, or compassionate, or just. He will be the next justice because his patrons have the votes to make it so. If you are fearful today of what Judge Alito might do once he gets to the Court, remember that feeling today and every day until this November, or until November 2008, when you get a small vote in determining who the next Justice may be. The genesis of these monumental choices and historic moments always begins at the ballot box.